The first publicly stated aim of the United States since September 11 has been very clear: to bring Osama bin Laden and other leaders of the al-Qaida network "to justice". In the aftermath of the attacks on America, and while fighting continued in Afghanistan, not much effort has gone into explaining what bringing them to justice might mean. Washington has mostly said it wants Bin Laden and his associates dead or alive. On other occasions, the emphasis has shifted to wanting him dead, which might not be unreasonable in some circumstances. Now things are changing again. The war is dying down and may even be over. Dozens of al-Qaida and Taliban suspects are in US hands. Bin Laden is still on the run, possibly beyond Afghanistan. More serious attention must now be paid to the fate of these enemy prisoners, as well as to others who may be captured in future, including Bin Laden himself.

The war against terrorism is not a traditional war. It is therefore not self-evident that the combatants are covered by the laws of war, including the 1949 Geneva Convention on the treatment of prisoners. The US has gone to some lengths to perpetuate this uncertainty, describing its prisoners as "battlefield detainees" and refusing to give either its al-Qaida or its Taliban captives prisoner-of-war status. This is highly questionable, especially for captured Taliban, who fought for a state which, like the US, is a signatory to the convention. It is more understandable in the case of al-Qaida, whose members are not traditional armed forces and who are in many cases, perhaps all, individually highly dangerous. Even so, in 1998, the US voted for UN security council resolution 1193 which called on all parties to the earlier Afghan conflict to abide by the laws of war and the Geneva Convention. The US, which had an exemplary record on such matters in the Gulf war, should give its Taliban prisoners PoW status immediately. If the US remains unwilling to give al-Qaida prisoners that same status, it should nevertheless treat them as though they are PoWs. Al-Qaida prisoners are very dangerous, but it would be unacceptable to deny them basic rights.

The groundwork for some of the most highly sensitive and politically charged trials of modern times is now taking shape. Washington plans to remove its prisoners from Asia to US bases, perhaps including ships, in the Pacific and on Cuba. There is nothing inherently wrong with doing that (Britain shipped many second world war PoWs to Canada), provided that PoWs are released when the war is over (assuming a war on terrorism can ever be over) and providing that by being moved to US possessions the prisoners do not lose rights to which they would be entitled if they were moved to the US itself. Even so, many prisoners (including presumably Bin Laden if he is captured) are likely to face trial by the special military tribunals for non-US suspects set up by George Bush in November. Some of the worst fears about these tribunals were assuaged yesterday by the release of draft rules that were fairer than first intended, but the rules of evidence will still be looser than in normal trials, suspects' rights will be more restricted, and the jury-less tribunals can (and surely will) impose death sentences, though the nature of the charges is still unclear. These issues ought to be urgent concerns for all nations, not least for Americans, who love liberty, and whose long tradition of concern over the fate of their own PoWs now also needs to embrace the fate of the enemy prisoners whom the US seeks to bring to justice.